Rudd's Estate, In re

Citation369 P.2d 526,140 Mont. 170
Decision Date06 March 1962
Docket NumberNo. 10237,10237
Parties, 7 A.L.R.3d 307 In the Matter of the ESTATE of John RUDD, Deceased. Sophie Lundevold JOHNSON et al., Objectors, Plaintiffs and Respondents, v. John J. JENSEN, Mike Davey, Roman Catholic Bishop of Great Falls, a corporation sole, and Community Congregational Church of Absarokee, Montana, Petitioners, Proponents, Defendants, and Appellants.
CourtUnited States State Supreme Court of Montana

Blenkner & Blenkner, Columbus, Sandall, Moses, Cavan & Battin, Billings, Wm. R. Morse, Absarokee, Wiggenhorn, Hutton, Schlitz & Sheehy, James L. Sandall (argued orally), John C. Sheehy (argued orally), Billings, for appellants.

Henry I. Grant, Jr., Columbus, Coleman, Lamey & Crowley, Frank A. Gallagher (argued orally), Billings, for respondents.

JAMES T. HARRISON, Chief Justice.

On January 12, 1960, John Rudd, a Norwegian immigrant to the United States, died in Columbus, Montana, at the age of 88 years, leaving an estate in excess of $70,000. He was a single man, never having married. His known relatives were Hans Birkeland, a third cousin; Ole Lundervold, a second cousin; Sophie Lundervold Johnson, Ole's daughter; and Alvin Johnson, the son of Sophie.

On January 19, 1960, a document dated January 9, 1960, was offered for probate as the last will and testament of John Rudd. The will listed as beneficiaries three churches in Absarokee, Montana; the Congregational; the Lutheran; and the Catholic. The principal beneficiary was John F. Jensen, 29 years of age, of Columbus, Montana. The document revoked a previous will and codicil dated 1957, wherein Sophie Lundervold Johnson, Alvin Johnson, and the Lutheran Church of which John Rudd had been a member for over 40 years, were beneficiaries.

An opposition to probate of will was filed by Ole Lundervold, Sophie and Alvin Johnson. After a trial, the court sitting without a jury decreed that the will was improperly attested and executed. From this judgment appeal was taken by the proponents of the will.

The background and facts surrounding the attestation and execution of the will dated January 9, 1960, are as follows:

For approximately two years prior to the execution of the purported will, John Rudd had been in failing health. In 1957, he was hospitalized in Columbus for a period of time. He suffered from diabetes and Stokes'-Adams syndrome. About January 3, 1960, Rudd suffered a stroke which was either a cerebral hemorrhage or a thrombosis. Paralysis of the left arm and leg resulted from the stroke. In addition to his physical condition there is considerable doubt as to whether Rudd could read English.

From the time John Rudd was released from the hospital in 1957 to shortly before his death, he resided at his farm with Wayne Jensen and John F. Jensen who were brothers. On January 9, 1960, being the sixth day following his stroke and while confined to his farm house, Rudd expressed a desire to Wayne Jensen to make a new will. Wayne testified that he was instructed by Rudd to have a will prepared leaving all his property to the three churches in Absarokee, and also to procure the necessary witnesses, one of whom was to be Rudd's physician, Dr. Andrew J. Wehler. Wayne Jensen then consulted with an attorney in Columbus and was correctly advised by such counsel that unless Rudd lived for thirty days after the execution of the will, the gift to the churches would not be valid in excess of one-third of the estate. John Rudd was informed of this fact and, according to Wayne's testimony, he was instructed to have a will drawn leaving one-third of the estate to the churches, a house to Mr. Van Bell, and the remainder of the estate to John F. Jensen, Wayne's brother. Wayne again contacted the attorney, a will was drawn, and he further testified he then returned to the ranch and read the will to Rudd.

Wayne then left the will with Rudd and he and his brother John went into the bedroom and conversed. The subject of the conversation was Leo Uhrich. According to Wayne, Rudd had requested him to secure the sheriff and the doctor as witnesses. The sheriff being out of town Wayne had arranged with Uhrich to come instead, and was concerned as to what Rudd would say when another person came in place of the one he had requested. When they came out of the bedroom they found that Rudd had already signed page one of the will. Wayne remonstrated that he should not sign until the witnesses came and Rudd then stated: 'No, I want to go in and lay down, and it doesn't make any difference. You can be witnesses.' Emphasis supplied.

Approximately one-half hour after John Rudd signed the will and while he was lying in bed in the bedroom, the witnesses, Dr. Wehler and Leo Uhrich arrived at the ranch. Uhrich had been informed by Wayne Jensen that the purpose of his visit was to witness a will, however, Dr. Wehler had only been told he was to witness a paper.

Upon arrival, Dr. Wehler went immediately to the bedroom of John Rudd and examined him, determined that he had suffered a stroke and should be placed in a hospital. Dr. Wehler asked Rudd a number of questions as he had done on previous occasions, and found his mental condition good. However, during the examination nothing was said by or to Rudd concerning his will or the real purpose of the doctor's visit. Rudd at this time was not physically able to stand or walk by himself.

While the physical examination was taking place, Leo Uhrich stood in the doorway of the bedroom part of the time and then left and sat at the kitchen table where he remained until after signing the will. He testified that he only heard parts of the conversation between Dr. Wehler and Rudd. Dr. Wehler completed the examination, returned to the kitchen, and informed Wayne Jensen that John Rudd would have to be taken to the hospital. John F. Jensen stated he would dress Rudd, whereupon he went into the bedroom. Wayne Jensen then produced the will and asked Dr. Wehler if he would witness it. Both the doctor and Wayne Jensen testified they believed John Rudd could have heard this conversation from the bedroom.

Dr. Wehler then returned to the bedroom, at which time he found Rudd sitting up in bed. Dr. Wehler stated: 'Is this the way you want it, John'? John Rudd answered, 'Yah'.

Dr. Wehler then went to the table in the kitchen, sat down and signed the will, and then handed the document to Leo Uhrich and stated to him: 'This is John's will, will you sign it?' Uhrich then signed the document. The witnesses for the proponents of the will again stated they believed John Rudd could have overheard this statement from the bedroom. However, it is noteworthy that when this statement was made, John F. Jensen, a proponent of the will, was in the bedroom dressing Rudd, which task was not easy in view of the physical condition of Rudd and even if John Rudd could have heard such statement were he listening, the process of being dressed could have been distracting, and he must have been tired because he expressed his wish to lie down and he may not have been listening. All of this, of course, is speculation on the facts and what might have been possible, but it points up the lack of proof of the attestation required by the statute.

The fact that Dr. Wehler was requested to sign the will by Wayne Jensen, his asking John Rudd if that was the way he wanted it, his signing, and the signing of Leo Uhrich constituted one continuous transaction according to the testimony in the record.

The whereabouts of John F. Jensen during this transaction is somewhat confused. The fact that Rudd was sitting up in bed when Dr. Wehler asked him if that was the way he wanted it indicates John F Jensen was in the bedroom at that time, because John F. Jensen's testimony indicates he was in the bedroom when Rudd sat up. He was definitely in the bedroom dressing Rudd when the will was witnessed by Dr. Wehler and handed to Leo Uhrich to sign with the doctor's statement: 'This is John's Will'.

As the bedroom door was opposite the table where the will was witnessed, a large part of the testimony was devoted to whether Rudd could have seen the witnesses signing the will. While he was being dressed, at times he stood, and at times he was seated on the bed. If he was standing at the time the witnesses signed the document, the record indicated he could probably have seen them sign. However, if he was seated on the bed, he probably could not have seen the signing. There is no evidence that he did see the witnesses sign. After he was dressed, Rudd was carried on a chair out to a car and transported to the hospital where he died three days later.

The court in its findings of fact, which are summarized below, held:

1. That testator affixed his signature to the will at least fifteen or thirty minutes before the attesting witnesses;

2. That John Rudd was in failing health and was partially paralyzed;

3. That Rudd could not see his will nor Dr. Wehler when the doctor affixed his signature to the will;

4. That John Rudd did not sign the purported will in the presence of the attesting witnesses nor acknowledge to them in any manner that the name subscribed on the document was his signature;

5. That John Rudd did not declare to the attesting witnesses that the document was his will; and

6. That John Rudd did not request the attesting witnesses to sign their names as witnesses and they did not sign in his presence.

Prior to an examination of the merits of this appeal we again reiterate the position of this court in reviewing equity appeals. In Havre Irrigation Co. v. Majerus, 132 Mont. 410, 318 P.2d 1076, we stated:

'* * * this court indulges in the presumption that the judgment of the trial court is correct, and will draw every legitimate inference therefrom to support the presumption.'

Also our inquiry into the evidence is limited to whether the findings of the trial court are supportable when the evidence is viewed in the light most...

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